Dismissed

Sri K B Singregowda v. Sri Narayana

Karnataka HC10 Jan 2023RSA/1102/2022

Case brief

AI extract

What is this about?

This is an appeal under Section 100 CPC challenging a judgment and decree in a suit for permanent injunction regarding ancestral property. The appellants (defendants below) contended the trial court erred in decreeing the suit where the plaintiff admitted in cross-examination that no one was in possession of the property. This single-judge bench of the High Court of Karnataka held that revenue rec

What did the court decide?

The appeal filed under Section 100 CPC was dismissed, and any interim questions stand disposed of.

Sri K B Singregowda Vs Sri Narayana — Succession and Inheritance | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF JANUARY, 2023

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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R.S.A.NO.1102/2022 (INJ)

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BETWEEN:

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1 . SRI K.B. SINGREGOWDA S/O LATE BETTEGOWDA AGED ABOUT 80 YEARS

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2 . SRI MANJU S/O K.B. SINGEREGOWDA AGED ABOUT 45 YEARS

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BOTH APPELLANTS ARE R/AT KALLAHALLI VILLAGE JAYAPURA HOBLI, MYSURU TALUK MYSURU DISTRICT 571 105. … APPELLANTS

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[BY SRI KUMARA K.G., ADVOCATE]

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AND:

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SRI NARAYANA S/O LATE BETTEGOWDA AGED ABOUT 55 YEARS R/AT KALLAHALLI VILALGE JAYAPURA HOBLI MYSURU TALUK-571 105 ... RESPONDENT

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THIS R.S.A., IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 06.04.2022 PASSED IN RA.No.129/2021 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED

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10.08.2021 PASSED IN OS No.1777/2012 ON THE FILE OF THE XI ADDITIONAL CIVIL JUDGE AND JMFC, MYSURU.

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THIS R.S.A., COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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This matter is listed for admission today. Heard the

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learned counsel for the appellants.

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This appeal is filed challenging the judgment and decree dated 06.04.2022 passed in R.A.No.129/2021 on the file of the I Additional Senior Civil Judge and CJM at Mysuru.

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The factual matrix of the case of the plaintiff before

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the Trial Court in O.S.No.1777/2012 is that the plaintiff is the absolute owner of the suit schedule property bearing Sy.No.86 measuring 4 acres and 1 gunta situated at Kallahalli Village, Jayapura Hobli, Mysuru Taluk. The said property was the ancestral property of plaintiff and defendant No.1, which was fallen to the share of plaintiff in the partition. Since then the plaintiff was in possession and enjoyment of the suit schedule property and he was paying the revenue to the suit schedule property. The defendants have no manner of right and title in respect of the suit schedule property. The defendants have tried

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to cut down the trees existing in the suit schedule property. Hence, the plaintiff has lodged a complaint to the jurisdictional Police. The Police have advised the plaintiff to approach the Civil Court. Again on 05.04.2012, the defendants came to suit schedule property and tried to cut down the tress. Hence, the plaintiff approached the village panchayathdars, it went on vain. Hence, the plaintiff without having any other alternative remedy, he has approached the Court.

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In pursuance of the suit filed by the plaintiff, notice was ordered. The defendants have appeared before the Court through their counsel and filed the written statement admitting that the suit schedule property was the ancestral property of their family. The suit schedule property fallen to the share of defendant No.1 by virtue of panchayath palu parikath held on 23.07.2003. But the Khatha was standing in the name of the plaintiff. Therefore, by taking the advantage of the same and in order to snatch away the suit schedule property from the defendants, the plaintiff has filed a false suit. It is contended that from the year 1981, the defendants are in possession and enjoyment of the suit schedule property. In view of the

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pleadings, the Trial Court has framed the issues with regard to whether the plaintiff is in possession and enjoyment of the suit schedule property and whether there is interference.

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The plaintiff in order to prove his case examined himself as P.W.1 and got marked the documents as Exs.P1 to P25. On the other hand, defendant No.1 has examined himself as D.W.1 and got marked the documents as Exs.D1 to P10.

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The Trial Court after considering both oral and documentary evidence available on record, decreed the suit and came to the conclusion that the plaintiff is in possession of the suit schedule property and all the revenue documents are standing in the name of the plaintiff and as on the date of filing of the suit also, the documents are standing in the name of the plaintiff. Hence, the plaintiff has made out a case to grant the relief of permanent injunction and there was an interference at the hands of the defendants. Hence, answered issue Nos.1 and 2 as ‘affirmative’. Being aggrieved by the judgment and decree of the Trial Court, the defendants have filed an appeal in R.A.No.129/2021 before the First Appellate Court, wherein also, they raised the very same grounds that P.W.1 in the cross-

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examination admitted when suggestion was made that whether the defendants are in possession of the suit schedule property. P.W.1 has given the answer that ‘no one is in possession’. The learned counsel would submit that it is very clear that the plaintiff is also not in possession. In spite of the said admission, the Trial Court has committed an error in granting the decree. The First Appellate Court also failed to take note of the said admission and committed an error in coming to the conclusion that the Trial Court has not committed any error in appreciating both oral and documentary evidence. The learned counsel also would submit that the First Appellate Court not properly reappreciated the evidence. Hence, it requires interference.

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Having heard the learned counsel appearing for the appellant and also on perusal of the material available on record, it is the claim of the plaintiff that there was a partition in the family and the suit schedule property is allotted to the share of the plaintiff and he has been in possession of the suit schedule property and all the revenue records are standing in his name. No doubt, in the cross examination of P.W.1, when suggestion

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was made that whether the defendants are in possession, he has given the reply that ‘no one is in possession’.

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The learned counsel appearing for the appellants

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would vehemently contend that the very answer itself is clear that the plaintiff is also not in possession. But it has to be noted that in the written statement, a specific defense was taken by the defendants that the suit schedule property was fallen to the share of the defendants in terms of the partition entered into between the parties on 23.07.2003. The only contention of the appellants/defendants is that the Khatha is standing in the name of the plaintiff. Taking the advantage of the same, the plaintiff contends that he has been in possession. When the defendants took the defense that the partition was effected on 23.07.2003 and by virtue of panchayath palu parikath, the property allotted to him. Neither the defendants nor the plaintiff have produced the panchayath palu parikath. Hence, the Trial Court also while considering the material on record in paragraph No.26 made an observation that, non production of panchayath palu patti by plaintiff itself does not take away the fact of possession of plaintiff in the suit schedule property since all the documents are

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standing in the name of the plaintiff. The defendant No.1 having custody of the panchayath palu patti with-held it and he did not produce the same. Hence, adverse inference also drawn in favour of the plaintiff by the Trial Court. Apart from that, the Trial Court in paragraph No.23 taken note of the documents – Exs.P1, P2, P8, P9 and P10 RTCs and Ex.P5 Patta Book, all the revenue records are standing in the name of the plaintiff, the same is not disputed by the defendants. The only contention is that taking the advantage of the revenue entries standing in his name, he is claiming the right. The Trial Court in paragraph No.23 taken note of Exs.D3 to D5, which clearly discloses the name of the plaintiff as owner and cultivator of the suit schedule property effected from the year 1986 as per I.H.R.6/84-85 and also taken note of Section 133 of the Karnataka land Revenue Act and the genuineness of such entry can also be presumed true under Section 79 of the Evidence Act. The First Appellate Court on perusal of the material available on record and also the grounds urged in the appeal formulated two points viz., whether the Trial Court committed an error in granting the decree and taken note of the documents which have been produced by the plaintiff in paragraph No.18 and also taken note of an answer

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elicited from the mouth of D.W.1 in paragraph No.23, wherein, D.W.1 admitted that the schedule property standing in the name of the plaintiff and also admits that he himself and the plaintiff are residing separately from the last 20 years. Hence, came to the conclusion by taking note of the admission that the plaintiff and defendants in the suit have partitioned their properties. When the defendants claim that in the partition, the suit schedule properties allotted in his favour, he has not made any efforts to change the revenue records to his name, also not disputes the fact that all the revenue records are standing in the name of the plaintiff. In the further cross-examination he admits that all the revenue records are standing in his brother’s name and also the plaintiff has obtained the loan from the Axis Bank. Hence, taking into note of the same, in paragraph No.24, the First Appellate Court discussed the same that all the revenue records are standing in the name of the plaintiff and also the plaintiff has obtained the loan from the Axis Bank based on the documents standing in his name and taken note of Section 133 of the Karnataka land Revenue Act and considering all these materials available on record, in detail discussed in the appeal and came to the conclusion that the Trial Court has not

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committed any error. Both the Courts have given the finding that all the revenue entries are standing in the name of the plaintiff and the same is admitted by D.W.1. D.W.1 also admitted in the cross-examination that his brother had availed the loan from Axis Bank. The only contention raised by the learned counsel for the appellants is that in the cross-examination when the suggestion was made to P.W.1 that whether defendant is in possession and he has given the answer that ‘no one is in possession’, that amounts, the plaintiff also not in possession. The said contention cannot be accepted.

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Taking into note of the evidence of P.W.1 and D.W.1, both the Courts have given the finding that the plaintiff is in possession of the property and all the revenue records are standing in the name of the plaintiff, the same is also not disputed and the same is admitted by the first defendant in the cross-examination that all the revenue records are standing in the name of the plaintiff and also the plaintiff has availed the loan from the Axis Bank. When such being the material available on record and both the Courts have taken note of Section 79 of the Evidence Act and Section 133 of the Karnataka land Revenue

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Act, given the finding both on the question of fact and question of law and came to the conclusion that the plaintiff has proved the possession. When such being the material available on record, I do not find any error committed by the Trial Court as well as the First Appellate Court and I do not find any ground to invoke Section 100 of CPC., to frame any substantial question of law and also I do not find any perversity in the order of the Trial Court as well as the First Appellate Court. When the finding is not perverse, the question of invoking the jurisdiction by framing the substantial question of law does not arise.

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In view of the discussions made above, I pass the

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following:

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ORDER

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The appeal is dismissed.

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In view of dismissal of the appeal, I.As, if any, do not survive for consideration, the same stand disposed of.

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Sd/JUDGE

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cp*

Sri K B Singregowda v. Sri Narayana

Case brief

What is this about?

What did the court decide?

Sri K B Singregowda v. Sri Narayana

Case brief

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What did the court decide?

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